2021 IL App (1st) 200574
Ill. App. Ct.2021Background:
- In November 2015 Charles Green sent a FOIA request to the Chicago Police Department (CPD) for all closed Complaint Register (CR) files relating to Chicago police officers; CPD did not timely respond and Green sued in December 2015.
- At the time of Green’s request a May 2015 injunction (from separate FOP litigation) prohibited CPD from releasing CR files more than four years old as of any FOIA request; CPD asserted that injunction as a defense to producing older files.
- The injunction and an associated arbitration ruling were later vacated by appellate and supreme court decisions, but those developments occurred after CPD’s implicit denial in November 2015.
- The trial court (in January 2020) granted Green summary judgment and ordered CPD to produce CR files dated 1967–2011 (and earlier had ordered production of 2011–2015 files); CPD appealed and production was stayed pending appeal.
- The appellate majority reversed, holding the propriety of withholding is judged as of the time of the FOIA response and that CPD, bound by a then-valid injunction, did not improperly withhold the 1967–2011 records.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could order production of 1967–2011 CR files when an injunction barred release at time of Green’s FOIA request | Green: injunction was void/should not block relief; court may order production now that injunction is vacated | CPD: injunction barred release at time of request, so CPD did not improperly withhold and court lacks jurisdiction to order production | Held: Evaluate withholding at time of response; because injunction lawfully barred release in Nov 2015 CPD did not improperly withhold and trial court erred in ordering production |
| Whether CPD could belatedly invoke FOIA’s undue-burden exemption after failing to timely respond | Green: CPD waived undue-burden defense by missing FOIA response deadline | CPD: should be allowed to raise undue-burden exemption | Held: Appellate court did not decide this issue (reversal based on injunction/timing); therefore court need not resolve undue-burden claim |
Key Cases Cited
- In re Appointment of Special Prosecutor, 2019 IL 122949 (Ill. 2019) (a court order must be obeyed until modified or reversed; lawful injunction takes precedence over FOIA)
- City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, 2020 IL 124831 (Ill. 2020) (vacating arbitration/order to destroy records as against public policy)
- GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (U.S. 1980) (a court injunction must be complied with until modified or reversed)
- Bonner v. United States Dep’t of State, 928 F.2d 1148 (D.C. Cir. 1991) (FOIA responses judged as of the time of agency’s decision; courts should not require endless reprocessing)
- Lesar v. United States Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980) (agency’s withholding assessed under circumstances at time of decision)
- American Civil Liberties Union v. National Security Agency, 925 F.3d 576 (2d Cir. 2019) (declining to require reprocessing based on post-response disclosures)